Complainant

Respondent

Anonymised Parties

An Acting Storeman

A Local Authority

Representatives

SIPTU

LGMA

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00031904-001

30/10/2019

The Worker commenced employment with the Employer as a general operative. From 2006, the Worker acted up on short term arrangements to cover annual leave, sick leave etc for the stores position within the depot. In 2009, due to the economic downturn the Employer engaged in a restructuring programme with the Group of Unions. A document was released in June 2009 which outlined that the depot would require two permanent full-time stores staff.

In late 2009, a retirement of one of the stores staff left a vacancy which was filled from a local competition by the Worker. From 2010, the Worker started to fill the capacity on a permanent day to day basis. Duties included but were not limited to stock-taking, maintaining records, ordering stocks, supplies etc. The Worker has fulfilled these duties since then. The Union also highlights that following the local interview to fill the stores position, the Worker’s payslip was no longer returning him as general operative but as a storeman.

In January to March 2013, the Employer engaged the Group of Unions in the LRC for the formation of a new standalone entity, the “Public Realm”. On 11 March 2013, agreement was reached with the Group of Unions and the Public Realm agreement was circulated. One of the major positions of the Group of Unions during discussions in the LRC was the regularisation of the long-term acting positions. Following the formation, a case was taken to the Labour Court by SIPTU which sought the regularisation of a long-term acting up position. The case was ruled in favour of the SIPTU claimant. SIPTU and the other Unions highlighted the long-term acting numbers and placements. In March 2015, the Employers HR unit wrote to SIPTU acknowledging receipt of numbers and placements but requested that the Worker and other long-term acting stores issues be parked while the 2015 review was ongoing.

In 2015, the Employer advertised for a temporary stores position within the Council’s housing section. The Worker applied for this position in the hope of regularisation. Following a successful interview, the Worker was placed first on the panel. The Worker was then informed that his position would not be regularised as the position in housing was only advertised for a 6-month temporary fixed term contract. The Worker declined the position after HR’s information on the position.

In the years 2016, 2017 and 2018 the matter was raised regularly by SIPTU with the Employer. SIPTU highlighted that the non-engagement with the Worker was causing financial penalisation as the Worker was still being retained on an acting basis on the first point of the stores incremental scale. SIPTU pointed out the financial loss to the Worker as a result of the non-regularisation of his position.

The Union asserted that in 2019, the Employer regularised a temporary storeman in housing section who had been in place for four years. The Union highlighted that this member of staff was appointed without interview and was placed on the fifth point of the stores incremental scale. The Union states that the Worker has been a loyal long serving member of staff and that the denial of his regularisation should have been addressed through Work Force Plan meetings a number of years ago. The Union has been engaging nearly 7 years seeking regularisation of its member. The Union request that the Worker be regularised immediately at the final point of the stores scale and that a financial settlement which would constitute back monies owed on regularisation dating back to 2015 be given to the Worker.

The Employer states that the Worker has no entitlement to being regularised outside of competition and in circumstances where he has been paid the appropriate rate for an Acting post since his appointment. The Employer asserts that the custom and practice is to appoint non-craft grade employees to the minimum point of the higher grade or the nearest point thereafter that ensures a minimum increase of €6.35 per week, which is what occurred with the Worker. Acting for such posts does not attract incremental credit.

On a preliminary point, the Employer submits that the WRC is precluded from hearing this complaint under section 13(2) of the Industrial Relations Act which states “Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner”.

The Employer asserts that it is clear that the current case concerns not just the Worker but other long-term acting posts. It states that there are currently 30 employees in long term acting posts, 2 of which are currently working in Stores. The Employer states that it is clear that if the current complaint succeeds, the Union will use the case as precedent for further complaints submitted in relation to other Acting staff. The Employer states that the within complaint should be dismissed as a Body of Workers claim as per section 13(2) of the Act.

The Employer asserts that if consideration is given to the within complaint as an individual complaint, the local grievance procedure should be utilised and exhausted in full prior to submission for adjudication, however if the complaint is to be regarded as a collective complaint, it is not appropriate for adjudication as it is a body of workers complaint.

The Employer cites the case LCR22087 which its states is near identical to the current case (where an employee sought to be appointed on a permanent basis to his Acting post having applied for a competition for that post and been unsuccessful and reverted to their substantive post) and where the Labour Court recommended in favour of the Employer.

The Employer states that the Worker can only be appointed to the role, as is the practice in the sector, through competition and cannot be appointed/regularised outside of that process, on a personal to holder basis. The Employer states that it has confirmed that a competition for the permanent post of stores person will be carried out and subsequent to that competition, the Worker will either revert to his substantive post or be appointed to the post on a permanent basis ( if he is successful in a competition for that post).

The Employer states that while the Worker has claimed that he suffered a loss of earnings, it rejects said claim whereby the Worker was in receipt of the appropriate rate of pay during the Acting period. It further states that no actual loss has been established by the Worker in the within case where his pay over the period has increased by 36% in his acting post to his substantive post.

In conclusion, the respondent submits that the within claim is in relation to a body of workers. As issues in relation to the pay of a body of workers are specifically precluded under the Industrial Relations Act, there is no jurisdiction for this complaint to be heard.

I have considered the respective positions of both parties in the within dispute. The respondent has cited a number of cases in support of their position that this complaint not only concerns the complainant but other long-term acting posts within the stores area.

I am satisfied that the within dispute involves issues related to concerns of a body of workers. It is a claim which if conceded could potentially have broader implications for others. On that basis, the claim is precluded by the terms of Section 13 (2) of the Industrial Relations Act 1969. In all of the circumstances therefore, I cannot recommend that the complainant’s position be regularised.

I am satisfied that the within dispute involves issues related to concerns of a body of workers. It is a claim which if conceded could potentially have broader implications for others. On that basis, the claim is precluded by the terms of Section 13 (2) of the Industrial Relations Act 1969. In all of the circumstances therefore, I cannot recommend that the complainant’s position be regularised.